Unless MotionPoint and TransPerfect come to an agreement before the weekend, the two sides will begin presenting their arguments in a California court next week. At issue are four patents held by MotionPoint and three by TransPerfect. Each company claims that the other infringes on its patents. The seven patents comprise more than 200 claims and, if enforced, could have an enormous impact on the growing business of translation technology.

Why should this trial concern anyone other than the litigants? The patents affect every translation software product that we can think of, from traditional translation memory to translation management systems, to machine translation. If either side prevails and their patents are upheld by the court, the winning company could assert its rights and ask many software vendors to license the technology, develop alternative approaches to fundamental problems, or exit the business (see "The Attack of the TMS Patents," Dec11). This technology accounts for about US$1.1 billion of annual revenue, but more importantly its use by translators and language service providers underpins much of the industry (see "The Language Services Market: 2013," May13).

However, as we have written before, the case should never have gotten this far – and the patents should never have been issued. Why not? Because neither of these companies invented the technologies in dispute. Both MotionPoint and TransPerfect relied on prior art for their products. That is, they both employed concepts that had been developed in the 1990s by other suppliers such as Idiom, Lionbridge, LogoVista, and WizArt, well before the U.S. Patent and Trade Office (USPTO) issued patents to MotionPoint or TransPerfect for translation management, rules servers, and localization proxy servers. Many other software vendors, language service providers, and corporate users built those 1990s technology advances into their products or internal applications – names such as Google Translate, Smartling, and SYSTRAN come to mind.

Even before the trial, the USPTO already invalidated the patents. For example, last year it rejected 36 claims made in one of MotionPoint’s patents (see USPTO 95/001,918 Art Unit 3992). Relying on expert testimony and the yellowing pages of documentation from the late 1990s, the USPTO determined that earlier products had innovated before the patents were issued. With that decision in front of the court, companies that use any of the technologies in question will cross their fingers that the judge decides to dismiss the case.

While Common Sense Advisory hasn’t heard from either side about its intentions should it prevail, the history of the case to date points to possible outcomes. According to an article posted at “The American Lawyer”, MotionPoint fired the first volley in this three-year old saga. The article notes that MotionPoint’s lawyers informed TransPerfect in late 2009 that MotionPoint “intended to enforce its intellectual property rights aggressively.” TransPerfect could be the test case for MotionPoint’s future defense of its portfolio of patents.

In our research practice, we are constantly on the lookout for disruptive technology that can change how language is processed – faster, better, and with more scalability. However, the disruption that could come from these patents being upheld benefits no one other than the company that was inappropriately granted protection for technology it did not invent.